7.  The applicant was born in 1959 and lives in the village of Elshitsa, in the Panagyurishte municipality, in a house owned by him and his former wife. His parents also live in that house. His daughter, from whose mother the applicant is divorced, stays with him every first and third weekend of the month and one month in the summer. The applicant's house is situated about one kilometre from the tailings pond (хвостохранилище) and the flotation plant (обогатителна фабрика) of a former copper‑ore mine. The applicant cultivates agricultural land located about four kilometres from the pond. On 23 December 2008 the applicant's father donated to him more agricultural land in Elshitsa; the applicant did not specify its exact location.
8.  The pond, whose surface area is 98.3 ha, was in operation until 1991. The mine continued to be worked until 1999. After decommissioning, measures for the conservation and reclamation of the pond were taken. In June 1994 a scheme, drawn up in March 1994, was subjected to an environmental impact assessment (“EIA”). The conclusion was positive. In December 1994 the EIA was submitted for public discussion by the inhabitants of Elshitsa and modified in line with their comments. The scheme was approved by the Interdepartmental Expert Council of the Ministry of Industry in October 1997 and began to be implemented in January 1999. It consisted in laying earth and soil and planting vegetation on the pond. Its implementation was stopped in April 1999.
9.  In May 1999 Mr Marin Blagiev, operating as a sole trader under the business name “ET Marin Blagiev”, proposed to the Ministry of Industry a new solution for the reclamation of the tailings pond. It consisted in the temporary capping of the pond's surface and slopes with soil cement, to prevent the spreading of dust, and in the use of sludge from a waste-water treatment plant in Plovdiv for biological reclamation.
10.  On 1 June 1999 the Pazardzhik Regional Inspectorate of Environment and Water gave a negative opinion on the new scheme. It expressed doubts as to the sustainability and the stability in acidic environments of the soil cement intended to be used for capping the pond. The proposed technology would provide a provisional solution for containing the dust spread from the pond, but would not lead to the pond's full reclamation. Moreover, ET Marin Blagiev had not specified the chemical composition of the sludge from the Plovdiv waste-water treatment plant. It appeared to contain heavy metals, as the plant treated not only domestic, but also industrial waste water. According to the relevant classifier, sludge resulting from the treatment of the latter was hazardous waste.
11.  On 2 June 1999 Panagyurishte's mayor also expressed a negative opinion on the new scheme. He noted, among other things, that the previous scheme had been fully approved and had begun to be implemented. In addition, the composition of the sludge from the Plovdiv plant was unclear, as it treated not only domestic, but also industrial waste water. This meant that the sludge might contain heavy metals.
12.  However, on 3 June 1999 the Ministry of Industry's Interdepartmental Expert Council approved ET Marin Blagiev's proposal and allowed him to submit a new scheme.
13.  In a letter of 24 June 1999 to the Minister of Industry, the regional governor said that the new reclamation scheme was not technologically superior to the previous one and should not be approved.
14.  On 1 July 1999 the Minister of Industry transferred the tailings pond from the assets of the State-owned company Panagyurski Mini EAD to those of a specially formed State-owned company, Eco Elshitsa EOOD.
15.  On 27 August 1999 ET Marin Blagiev presented its scheme to the Ministry of Industry. At about the same time Panagyurski Mini EAD, which had been implementing the initial reclamation scheme (see paragraph 8 above), presented the Ministry of Industry with an update to the initial scheme.
16.  The Ministry appointed a specialist board of experts to assess the two schemes. The board comprised experts from the Ministry of Industry, of Environment and Water, and from the Ministry of Finance, as well as from Panagyurski Mini EAD and ET Marin Blagiev. It held a meeting on 7 September 1999 to discuss the relative merits of the two schemes. It noted that both lacked checks on the stability of the pond. However, according to an expert's report, neither of them would impair the pond's stability. Both lacked climatological and hydrological descriptions of the area and data on the expected consolidation of the sludge after the reclamation had ended. The problems relating to the neutralisation of the acid water were partially addressed in ET Marin Blagiev's scheme and not addressed in Panagyurski Mini EAD's scheme. According to an expert's report, it was possible to use stabilised waste-water sludge from the Plovdiv treatment plant. The area around the pond did not have enough humus for the biological reclamation envisaged by Panagyurski Mini EAD's scheme; it would thus be necessary to enrich the existing soil artificially. ET Marin Blagiev's scheme envisaged finishing the reclamation in eighteen months and resolving the dust-spread problem even before that. Panagyurski Mini EAD's scheme also had an eighteen‑month timeline, but it was unrealistic. ET Marin Blagiev's scheme provided for the restoration of the productive qualities of 19.2 ha of polluted soil outside the tailings pond and its use for the production of specialised grass. According to accounts submitted by the two firms, ET Marin Blagiev's scheme would cost 5,139,356 Bulgarian levs (BGN) and Panagyurski Mini EAD's scheme BGN 5,878,945. On that basis, the board recommended that the Ministry of Industry's Interdepartmental Expert Council approve ET Marin Blagiev's scheme. Two experts representing Panagyurski Mini EAD disagreed, saying that this scheme did not meet various regulatory requirements. In particular, waste‑water sludge was not appropriate for reclamation; humus was much better suited for that task. It was also unclear whether the use of sludge would yield stable and safe results. According to the relevant classifier, the sludge from the Plovdiv plant was hazardous waste, because it came not only from domestic but also from industrial waste water. The documents relating to the scheme did not specify the exact toxic-substance content of the sludge. Lastly, the scheme's scope and potential effects on the environment warranted an EIA. The updated initial scheme suffered from none of these drawbacks, but, on the contrary, would provide a sustainable solution.
17.  The Ministry of Industry's Interdepartmental Expert Council, comprising representatives from several ministries, considered the two schemes on 9 September 1999. It examined the findings of the specialist board of experts, as well as the opinions of the Pazardzhik Regional Inspectorate of Environment and Water, of Panagyurishte's mayor, and of the regional governor. It also heard Mr Blagiev's explanations. Following a discussion, which touched upon, among other matters, the alleged heavy‑metal content in the sludge from the Plovdiv plant, the Council unanimously resolved to approve ET Marin Blagiev's scheme. The resolution was later approved by the Minister for Industry.
18.  In a newspaper interview published on 21 September 1999 the Minister for the Environment said that the new reclamation scheme was controversial and that she intended to challenge it. In her view, a fresh method of reclamation was to be sought, if need be with the help of university scientists.
19.  The new scheme began to be implemented in October 1999. Eco Elshitsa EOOD was the investor and ET Marin Blagiev the contractor.
20.  On 13 January 2000 the Pazardzhik Regional Inspectorate of Environment and Water found that the company carrying sludge from the Plovdiv plant to the pond was doing so without the licence required under section 12(1) the 1997 Limitation of the Adverse Impact of Waste on the Environment Act (see paragraph 52 below), which corresponded to an administrative offence. On 29 March 2000 it fined the company.
21.  Consequently, ET Marin Blagiev applied for such a licence, which was granted by the Minister for the Environment and Water on 22 February 2000. In her decision the Minister allowed ET Marin Blagiev to process up to four hundred tonnes of domestic waste‑water sludge a day. In particular, it could carry stabilised sludge from the Plovdiv treatment plant to the pond, store it in pits or other open‑air containers and use it for fertilising soils or improving the environment. The sludge was to be carried in lorries, with between six and eleven runs from the Plovdiv plant to the pond per day. It was to be laid on the pond in keeping with the technology approved by the Interdepartmental District Council and with certain other precautionary measures. The laying of sludge had to be finished before 30 December 2001. In the meantime, ET Marin Blagiev had to present quarterly chemical analyses of the sludge to the Ministry of Environment and the Pazardzhik Regional Inspectorate of Environment and Water.
22.  After finding out about the above licence, on 21 December 2000 the applicant applied to the Supreme Administrative Court (Върховен административен съд) for judicial review of the Minister's decision to grant it. He started by contending that he had a sufficient legal interest to contest the decision, because it impacted on his right under Article 55 of the Constitution (see paragraph 47 in limine below) to live in a “healthy and favourable environment corresponding to the established standards and norms”. He pointed out that he lived in Elshitsa, close to the place where the licence allowed sludge to be laid, and that the sludge could have adverse effects on the environment and human health. He also referred to Article 120 § 2 of the Constitution (see paragraph 47 in fine below). He further argued that the decision was null and void, as its implementation was impossible. The decision allowed ET Marin Blagiev to carry and process domestic waste-water sludge. However, this could not be done, because the waste water treated in the Plovdiv plant came from both domestic and industrial sources. It was unfeasible to separate the domestic from the industrial sludge and for this reason it was impossible to carry and process solely domestic sludge. The applicant further argued that the Minister's decision unlawfully classified the sludge as industrial waste, as under the relevant rules it was hazardous waste; this was also evident from various analyses. Furthermore, the Minister had taken the decision in breach of the rules of procedure, as no EIA had been drawn up.
23.  In his application the applicant also requested the court to stay, as an interim measure, the enforcement of the impugned decision, as failure to do so could frustrate the purpose of the proceedings and cause irreparable harm to the environment, thus infringing the right of Elshitsa's inhabitants to a safe and healthy environment. As the court did not rule on that request, on 21 February 2001 the applicant renewed it. He argued that the continuing implementation of the decision could lead to irreparable harm for the environment, as the spreading of sludge was still going on at a regular pace.
24.  On 21 March 2001 (опр. № 1826 от 21 март 2001 г. по адм. д. № 732/2001, ВАС, ІІ отд.) a three‑member panel of the Supreme Administrative Court declared the application inadmissible. It found that the applicant had not been party to the administrative proceedings and therefore had no standing to seek review of the Minister's decision. His interests could not be adversely affected by the decision, but solely by the potential unlawful actions of those whom the decision authorised to carry and process waste.
25.  On an appeal by the applicant, on 14 June 2001 a five‑member panel of the Supreme Administrative Court quashed the three‑member panel's ruling and remitted the case for an examination on the merits (опр. № 4333 от 14 юни 2001 г. по адм. д. № 3777/2001, ВАС, петчленен състав). It held that in view of the aim of the environmental protection legislation – to prevent or at least reduce the adverse effects of waste on the environment and human health – all individuals living in an area at risk of pollution due to waste‑treatment operations could be considered as interested parties. The applicant, as well as all persons living near the tailings pond, had an interest in preventing activities, such as those allowed by the impugned ministerial decision, which could pollute their environment and thus possibly impair their health.
26.  On 28 August 2001 the applicant reminded the court once more of his request for a stay of execution of the decision. On 18 September 2001 the three-member panel turned down the request, saying that the materials in the file did not point to any danger for the applicant's interests.
27.  A hearing listed for 16 October 2001 did not take place, as ET Marin Blagiev had not been properly summoned. It took place on 15 January 2002. The court heard the parties' arguments. A public prosecutor participating in the proceedings ex officio submitted that the application should be allowed.
28.  In a decision of 23 January 2002 (опр. № 605 от 23 януари 2002 г. по адм. дело № 4993/2001, ВАС, ІІ отд.) the three-member panel discontinued the proceedings, holding that the case had become devoid of object as the licence granted to ET Marin Blagiev had expired on 30 December 2001.
29.  The applicant appealed, arguing, among other things, that he had a continuing legal interest in seeking judicial review of the decision, because it had allowed waste disposal near his home, which could lead to problems for his health. The annulment of the decision was in addition a prerequisite for successfully prosecuting a claim in respect of the harm occasioned by the unlawful waste disposal. The decision's effects had not ended on 30 December 2001, as the negative results of the activities which it had made possible could persist for years to come.
30.  On 24 September 2002 a five‑member panel of the Supreme Administrative Court upheld the discontinuance (опр. № 8432 от 24 септември 2002 г. по адм. д. № 7232/2002, ВАС, петчленен състав). It noted that the subsistence of a legal interest in seeking the annulment of an administrative decision was mandatory throughout the proceedings. The three‑member panel had had regard to a fresh development – the expiry of the licence – which had come to pass while the proceedings were pending. The allegation that the applicant had suffered damage at the time when the licence had still been in force was not sufficient to establish the existence of a continuing legal interest, as reparation for such damage could be sought in civil proceedings.
31.  The new reclamation scheme drew widespread disapproval from Elshitsa's inhabitants. On 10 and 19 April 2000 Mr A.P., member of the Panagyurishte Municipal Council, sent letters to the Ministry of Health and to the National Centre for Hygiene, Medical Ecology and Nutrition (a subdivision of the Ministry of Health). He asked them to give their expert opinion on the question whether the implementation of the scheme could put at risk the health of the people living near the pond.
32.  The Centre replied on 25 April 2000. It said that there was a risk of heavy-metal contamination impacting on the population's health within a ten‑kilometre perimeter around the pond. The reclamation scheme lacked a suitable system for monitoring the underground water, where the migration of such metals could be expected, as the polymer cover was not stable in the long term. According to an expert in the Centre's toxicology laboratory, the heavy-metal content of the sludge spread on the pond was above the regulatory maximum, as shown by the chemical analysis of samples. The high levels of copper, zinc, cadmium, nickel, cobalt and chrome led to a pollution risk and a risk to the population's health. So did the presence in the sludge of lead and manganese. Those metals could have a negative impact on the nerve, respiratory and cardiovascular systems, the kidneys, the liver and the production of blood. Some of them were allergens, mutagens and carcinogens. The scheme's implementation would thus lead to a risk of dust from the sludge spreading in the atmosphere. There was also a risk that those metals would migrate through the surface and underground water, because of the acid pH of the water in the pond. The methodology for reclaiming old polluted areas classified the area situated ten to twenty kilometres from the source of the pollution as being at risk.
33.  Having received the Centre's opinion, on 17 May 2000 Mr A.P. asked the Chief Sanitary Inspector to stop the operation of the site. He did not receive a reply. Mr A.P. also alerted the mayor of Panagyurishte.
34.  On 29 May 2000 Panagyurishte's mayor appointed a commission to take samples from the place where the sludge was being spread and to submit it to a laboratory for an analysis of its heavy-metal content. Such samples were taken and sent to the National Centre for Hygiene, Medical Ecology and Nutrition. In a letter of 6 June 2000, accompanied by the expert opinion of a researcher in its toxicology laboratory, the Centre said that the lead, cadmium, copper, zinc, chrome and nickel content of the sample was well above the maximum permitted levels. Copper and zinc had a negative effect on agricultural crops and livestock. Lead, cadmium, chrome and nickel were systematically toxic for mammals and humans: they could harm the peripheral and central nervous systems, the production of blood, the liver and the kidneys. Those metals also had mutagenic and carcinogenic effects. In addition, chrome, cadmium and nickel were strong allergens. The underlying soil cement cover would provide some protection for the underground water in the region, but it was unclear how it would prevent the migration of heavy metals to the surface water.
35.  On 12 June 2000 Panagyurishte's mayor and the regional governor wrote to the Deputy Prime Minister. They urged him to halt the scheme's implementation and noted that its continuation could lead to civil unrest in Elshitsa. Apparently no reply was received.
36.  On 13 December 2001 the Ministry of Environment and Water granted Eco Elshitsa EOOD a permit to discharge waste water, setting certain limits on the content of heavy metals and other toxic substances in it, and requiring the company to report to the competent authorities on a monthly basis.
37.  On 25 September 2002 the works on the pond were accepted by the authorities.
38.  On 11 August 2004 Elshitsa's mayor asked the environmental inspection authorities in Pazardzhik to provide him with information about Eco Elshitsa EOOD's monthly self‑monitoring reports. On 8 September 2004 those authorities replied that they did not have such reports on file and that they were pressuring the company to comply with its reporting obligations.
39.  On 9 January 2001, as a result of pressure from inhabitants of Elshitsa, the Minister for the Environment and Water ordered Eco Elshitsa EOOD to commission an EIA. In an additional decision of 1 March 2001 she specified that the EIA was to be ready by 31 March 2001.
40.  As a result of a hunger strike by three members of a public committee opposed to the scheme and of a visit by the Minister for the Environment and Water to Elshitsa, on 10 November 2001 the Pazardzhik Regional Inspectorate of Environment and Water, noting that no EIA had been drawn up, ordered that the implementation of the scheme be stopped pending completion of the assessment. However, by that time about 97 ha of the 98.3 ha of the pond had been covered with sludge. It seems that the total amount deposited was forty‑eight thousand cubic metres.
41.  The EIA was ready in March or April 2002. It was submitted for a public discussion, at which three experts from the University of Sofia's faculty of geology and geography expressed their misgivings about the scheme.
42.  On 4 July 2002 the Minister for the Environment and Water decided not to accept the EIA and sent it back for revision. She noted some serious omissions in its estimation of the health risk to the population arising from the reclamation scheme, the lack of information about the hazardous substances involved in the scheme, and the fact that the team which had drawn it up did not include an expert on the health and hygiene‑related aspects of the environment. The Minister instructed the experts to revise the EIA and, in particular, to make a comparative study of the existing analyses and make an additional chemical analysis of the sludge laid on the pond. It was to be specifically checked for heavy metals and mercury content. The taking of samples for that analysis had to be done in the presence of the persons concerned. The experts were also to indicate the tailings' permeability, before and after the pond's capping with soil cement, as well as the permeability of the underlying rocks and the stability and the permeability of the soil cement after eighteen months of use. The revised EIA was to analyse all aspects of the scheme with reference to their effect on the health of the inhabitants of the villages surrounding the pond, and to propose concrete measures to tackle the problem. The analysis had to focus specifically on the penetration of heavy metals in the food chain.
43.  In October 2003 Eco Elshitsa EOOD and the company which it had hired to draw up the EIA submitted additional documents to the Ministry. In a letter of 17 October 2003 the Minister said that those documents did not contain the information requested in her decision of 4 July 2002. It was thus impossible to draw any reliable conclusions as to the effect of the reclamation scheme on the people and the environment. However, under the regulations in force, it was not necessary to pursue the matter further and finalise the EIA. As the works on the site had already been completed, it was sufficient for Eco Elshitsa EOOD to produce a self-monitoring report on the scheme's impact.
44.  Following pressure from Elshitsa's inhabitants and the local authorities, on 6 April 2004 the Minister of Health ordered the National Hygiene and Ecology Centre to carry out an assessment of the environment and the impact of the reclamation scheme on the local population's health. In a letter of 14 June 2004 the Centre informed the Ministry that its experts were ready to complete the task, but that it could come up with only twenty per cent of the necessary funding, amounting to BGN 8,000. In 2007, 2008 and February 2009 the applicant asked the municipality of Panagyurishte to cover the remaining eighty per cent of the amount, but the municipality made no provision for such an outlay in its budget. At the time of the latest information from the applicant on that point (29 January 2010) the money had not been found and the assessment had not been completed.
45.  The first self‑monitoring report by Eco Elshitsa EOOD was drawn up in November 2007 and covered the period between November 2006 and November 2007. It gave an account of, among other things, the heavy‑metal content of water coming out of the pond and of grass near it. These measurements were based on two water samples and five grass samples. One of the water samples did not show a heavy‑metal content above the regulatory maximum levels, whereas the other did, leading the report to conclude that the pond's drainage water was heavily polluted. According to the report, the polluting content of the grass samples was below the regulatory maximum level, but the applicant submitted that its authors had used the wrong comparators, using the regulatory maximum levels for soil, not grass, which were considerably lower. The report said that the pond should continue to be monitored, but at a decreasing pace, with sample‑taking once a year for grass and twice a year for water. Further reporting was envisaged in 2010.
46.  In its report on the state of the environment in 1997 the Ministry of Environment and Water noted, on page 98, that the Plovdiv waste water treatment plant had generated 45,601 tonnes of dangerous waste. In its annual report for 2004 the Environmental Protection Agency (Изпълнителна агенция по околната среда) noted, on page 4, that out of approximately 50,175 tonnes of sludge monitored by its Plovdiv branch, approximately 41.5 tonnes could be classified as dangerous. In its reports for 2006 and 2007 the Agency noted, on pages 9 and 9 respectively, that the chromium content of the sludge coming from the Plovdiv waste‑water treatment plant was above the regulatory maximum. That sludge was therefore not appropriate for the reclamation and regeneration of agricultural land.